In dueling media sessions, GOP and DFL legislators debate constitutionality of new health care reform law

The eyebrows of Sen. Julianne Ortman, R-Chanhassen, shot straight up.

“Frivolous.”

That’s what Rep. Ryan Winkler, DFL-Golden Valley, had called the lawsuit Ortman and the rest of the Republican state legislative delegation wants Attorney General Lori Swanson to file in order to block the health care law they believe infringes on the rights of Minnesotans.

“The Constitution, frivolous?” Ortman asked after Winkler was done belittling the Republican effort.

There was much agitation and agonizing and insulting going on at the State Office Building this morning as President Obama prepared to sign the health care reform bill.

The speaking order had gone like this:

First, the Republican legislators, all of whom have signed a letter asking Swanson to join attorneys general from as many as a dozen other states in filing a lawsuit, held a 10 a.m. news conference.

GOP legislators say new law violates 10th Amendment


One by one, Republicans — including Reps. Marty Seifert and Tom Emmer, who are in a battle for their party’s gubernatorial endorsement — spoke of the evils of the health care package and how they believe it violates the U.S. Constitution, specifically the 10th Amendment.

(These references to the 10th had reporters turning to Google. Hmmm, 10th Amendment. Ah, here it is: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

Republicans believe that the new health care reform law, which requires individuals and businesses of a certain size to purchase insurance is a clear violation of ol’ No. 10.

“The time has arrived,” said Emmer. “It [the health care law] is a violation of everything America’s about. … This [the fight to stop the bill] is not over yet. It’s just begun. … Voters will remember in November.”

Seifert couldn’t let Emmer do all the talking.

Rep. Marty Seifert

Rep. Marty Seifert

“The bill in Washington was partisan,” he said, as his fellow Republicans nodded in agreement. “There’s bipartisan opposition but not bipartisan support.”

Emmer’s turn again.

GOP united in opposition
“This is the most united group I’ve seen in a long time,” he said as he looked at his brother and sister Republicans.

Umm, where are the DFLers in this “united” front?

“I’m disappointed that some of our colleagues from the other side aren’t here,” Emmer said.

Sometimes, the event got a little confusing. For example, WCCO-TV’s Pat Kessler asked the Republicans that given their view of the 10th, if the feds have been in violation of the Constitution in calling up Minnesota Guard troops to fight in foreign wars.

There was some sputtering among the Republicans, until Sen. Ray Vandeveer of Forest Lake stepped to the microphone.

“We’re talking about health care today,” he said.

But that didn’t really end it, because Emmer said this is a bigger issue than health care.

Rep. Tom Emmer

Rep. Tom Emmer

“It’s cap-and-trade, all those things coming down from Washington,” he said.

GOP want attorney general to act
When the Republicans weren’t talking about how this bill is an infringement on all of our rights and a “clear” violation of the 10th Amendment, they were casting challenges toward Swanson, who is a DFLer.

Ortman, who has taken the lead on this issue for the Republicans, cited a section of the Minnesota Constitution, Section 801, for those who want to look it up.

“When our interests are directly affected, it’s her duty to lay aside her political agenda and do the work of the people of Minnesota,” said Ortman. She “must” file a suit.

So far, though, Ortman hasn’t been able to make her appeal directly to Swanson. She said she delivered the Republicans’ letter to the AG’s office on Monday, but the Attorney general wasn’t there to accept it.

Ortman said she stopped by the office again this morning to invite Swanson or her assistant to come to the news conference.

“Neither of them was there,” said Ortman, adding, “It was 9 o’clock. You’d think they’d be at work.”

Swanson’s office issued a statement Monday saying, essentially, that since the process then wasn’t even law yet, it’s premature to consider filing lawsuits. The statement added this zinger: “The Attorney General’s Office operates in the legal arena and we are not going to make any legal comments until we have had the opportunity to review the 2,400-page bill.”

Ortman says this business about analyzing before suing shows the attorney general isn’t even trying. She said she’s given the AG’s office “a lot of resources,” which would have helped staff there have a suit ready to go.

After the Republicans got through issuing challenges to Swanson and warning the rest of us about the “big government’s take-over of the greatest medical system in the world” — Emmer’s words — a couple of DFLers, Winkler and Rep. Tom Huntley, DFL-Duluth, grabbed the podium.

Winkler takes on GOP arguments
A number of Republicans stood around to hear their comments. They were not pleased with what they heard, especially from Winkler.

Not only did he call the Republicans effort “frivolous,” he had an even more damning thing to say: “The Tea Party paranoia has taken over the Republican Party. I didn’t think I’d ever see the day.”

He just kept hammering.

“Silly, absurd,” he said of the Republican demands. “This [health care] is every bit as legal as Social Security.”

He rattled off a few other areas where the feds have made requirements on the states: “OSHA, NLRB. All upheld in the courts, primarily for the benefit of all.”

And, of course, the civil rights movement.

Winkler suggested that Minnesota’s Republicans are trying to use the same “states’ rights” tactic that Southern states used in trying to block civil rights legislation in the 1960s.

“The states’ rights argument is a myth,” he said, calling use of the 10th “comfort food.”

The Republicans scribbled Winkler’s words into their notebooks and acted horrified after he was done speaking.

Rep. Ryan Winkler

Rep. Ryan Winkler

“States’ rights a myth?” said Rep. Laura Brod, R-New Prague. “That’s what he said. A myth.”

Emmer was sputtering over the use of the term “comfort food.”

For his part, Huntley tried to discuss the merits of the bill, including the financial benefits, but putting a finger on the dollars it will deliver to Minnesota still is difficult at this point. There will be gains to the budget in the short term, a bit of a hit in the next biennium, but then huge federal help to the state from 2014 and beyond, he said.

Huntley also delivered a shot at Minnesota’s Department of Human Services, which is apparently saying it will take nine months to get the “immediate” benefits of the health care reform working in Minnesota.

“Human Services can’t manage computers,” he muttered. “Give me a 12-year-old kid, a computer nerd, and he’d figure it out in two months.”

For the record, it appears that the effort by the Republican legislators and Gov. Tim Pawlenty, who sent a similar letter to Swanson Monday, faces tough going.

Hamline University Professor Cindy Jesson, an expert on health care law, says, “I grew up in the South, so I know the 10th.”

She does say that the new law does take steps beyond where the feds have gone before.

“It is requiring a purchase from a private party,” she said. But, she was quick to add, it would be “a huge break from precedent” for the courts to overrule the law.

For starters, the Constitution does give the feds both the power to regulate interstate commerce and the power to levy taxes. The way this health care law is set up, those who refuse to buy health insurance will be fined “through the tax code,” she said.

Her view is that the bill “has been carefully crafted” to avoid the arguments Republicans made this morning.

Certainly, Jesson indicated, Swanson has no obligation to file suit. “She represents the people,” said Jesson, not the governor nor the Legislature.

GOP foresees big election issue
For their part, the Republicans believe the health care reform law will be a big issue as the gubernatorial and legislative races unfold.

Winkler essentially said, “Bring it on.”

“People will recognize this is the party that just says ‘No,’ ” Winkler said. “They [Republicans] are going to be fighting over yesterday’s news.”

Party of “No”? That’s another line that always causes Republican eyebrows to shoot up.

“We have a lot of ideas,” said Ortman.

She was asked why, when Republicans controlled all of Washington just a few years ago, we didn’t hear about those health care reform ideas.

“I wish we had,” she said.

Doug Grow writes about public affairs, state politics and other topics. He can be reached at dgrow [at] minnpost [dot] com.

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Comments (9)

  1. Submitted by Steve Titterud on 03/23/2010 - 05:15 pm.

    Is Rep. Emmer’s “greatest medical system in the world” the same one that has given us millions of uninsured children, millions of policies cancelled when someone gets real sick, millions of bankruptcies caused by medical expense, all those denials of coverage based on pre-existing conditions, all those deaths of people who are, as a practical matter, denied access to medical care?

    Or is he talking about another one, that exists only in his mind?

  2. Submitted by John Roach on 03/23/2010 - 05:43 pm.

    Ah, yes. The good old 10th amendment.

    If the GOP successfully gets this in front of the radical right Justices, it’s possible that this could be struck down on those grounds.

    The problem is that in order to do so, the Court would have to completely disregard stare decisis with respect to the historical interpretation of article 1, section 8 over the last hundred years. The result of that would be the invalidation of the legal basis for Social Security and Medicare as well.

    Justice Roberts has already shown us that, contrary to his testimony at his confirmation hearing, precedent means nothing to him or his extremist colleagues; however, the dominos that would be set falling by such a decision may well be too much even for him and his like-minded team.

    If the Court does indeed decide to go down that road, Justice Kennedy will be the swing vote. He is the closest thing the Court has to an actual conservative, in contrast to the hard line ideological extremists to his right on the bench.

  3. Submitted by Steve Rose on 03/23/2010 - 06:00 pm.

    Rep. Emmer is talking about the system that formerly led the world in medical innovation.

    From yesterday’s Wall Street Journal:
    Medtronic (MDT) CEO Bill Hawkins says his company may need to cut 1K jobs in order to pay a new 2.9% excise tax on medical-device makers.

    Hawkins told the WSJ, “This will make us one of the highest-taxed regions in the world, and that’s going to have an impact on the appetite for people to invest in medical innovation.”

    http://www.topstockportfolios.com/report/5070/Health-Care-Taxes-Will-Cost-Jobs-Medtronic

    Obamacare killing local jobs and medical innovation; who would have thunk?

  4. Submitted by Bill Coleman on 03/23/2010 - 06:25 pm.

    Steve, funny that Medtronic stock and other device manufacturers stock went up yesterday. 30% more customers.

  5. Submitted by Howard Miller on 03/23/2010 - 06:52 pm.

    Too bad Mr Hawkins of Medtronics sought fit to threaten jobs as a result of health care reform. There are other options that the company might consider besides pushing their own people out on the street into a jobless market.

  6. Submitted by Patrick Guernsey on 03/23/2010 - 10:02 pm.

    Oh, let the Republicans file suit. They can explain why they ruined health care reform and possibly Social Security and Medicare at the next election!

  7. Submitted by Craig Westover on 03/24/2010 - 06:48 am.

    Amazing amount of ignorance on all sides from people making laws and reporting about them.

    Tell me, the press didn’t have to look up the 10th Amendment? Really, lawmakers, didn’t know about the Posse Commitatus Act? There was just the controversy over Presidential use of the National Guard in domestic emergencies that made the question of presidential authority over the guard news. Is the GOP pinning all it’s hopes on the 10th Amendment?

    The best bet for unconstitutionality is that while the Courts have expanded (beyond recognition) legislative power under the Commerce Clause, it has generally ruled on interstate activity. Requiring people to buy health insurance takes us into the area of regulating inactivity. Couple that with the notion that law actually prohibits interstate commerce in health insurance, and there is a case.

    Another avenue is, ironically, a suit under the general welfare clause. If the special state deals remain in the bill, it can be argued that the bill favors specific states over others with no “common” benefit to all (unlike the common benefit from, say, an Air Force base in Nebraska). That might not negate the entire bill, but it would certainly heighten awareness of the disregard the current administration has for the spirit if not the letter of the Constitution.

    But as Randy Barnett notes in the WaPo, whether HCR conflicts with what the Constitution says or with what the Supreme Court has said, the question boils down to whether or not five justices buy the argument. That would take some cajones.

    Justice Roberts is a strong stare decisis guy — he believes in following precedent and narrow decisions. However, in intent if not language, HCR is an unprecedented expansion of federal authority that opens the door for a more conservative court to put some parameters around Commerce Clause law. That’s more involved, however, than simply shouting 10th Amendment.

    Best tack to take for opposition to HCR is a state Constitutional Amendment to the effect that Minnesotans are free to purchase or not purchase any legally offered product or something to that effect. That would set the table for a Constitutional challenge on the meaning of the 10th Amendment.

    All that said, is it not amazing that in the 21st Century around a dozen states have already agreed to sue over the bill and as many as 30 are seriously considering it. Under the Constitution 33 states agreeing can force amendment of the Constitution without action of Congress. We are close to that number.

  8. Submitted by James Hamilton on 03/24/2010 - 09:05 am.

    The only difference between the current bill and the Medicare Act is that in the latter, Congress required individuals aged 65 and over to purchase health insurance from the government. Constitutionally, that is a distinction without a difference.

    The only purpose for litigation is to serve political ends. Public funds should not be used and judicial resources wasted to serve those ends.

  9. Submitted by John Roach on 03/24/2010 - 09:59 am.

    re:”…Roberts is a strong stare decisis kind of guy”….

    Justice Stevens disagrees with you:

    “The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551 U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U. S. 93 (2003) , FEC v. Beaumont , 539 U. S. 146 (2003) , FEC v. Massachusetts Citizens for Life , Inc., 479 U. S. 238 (1986) (MCFL) , NRWC , 459 U. S. 197 , and California Medical Assn. v. FEC , 453 U. S. 182 (1981) .”

    re: “…he believes in following precedent and narrow decisions…”

    Justice Stevens disagrees with you again:

    “…[T]he question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court. 2 Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell ,” ante , at 1, would be more accurate if rephrased to state that “we have asked ourselves” to reconsider those cases…”

    I think Justice Stevens knows exactly what “kind of guy” Justice Roberts is.

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